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   American University International Law Review   Volume 26|Issue 1 Article 82010 Freedom of Expression and the Right toReputation: Human Rights in Conict Stijn Smet Follow this and additional works at:hp://digitalcommons.wcl.american.edu/auilrPart of theHuman Rights Law Commons    , and theInternational Law Commons Tis Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ AmericanUniversity Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorizedadministrator of Digital Commons @ American University Washington College of Law. For more information, please contactrown@wcl.american.edu. Recommended Citation Smet, Stijn. Freedom of Expression and the Right to Reputation: Human Rights in Conict. American University International Law Review 26 no. 1 (2010): 183-236.    183   F REEDOM OF E XPRESSION AND THE R IGHTTO R EPUTATION :   H UMAN R IGHTS IN C ONFLICT ∗   S TIJN S MET ∗∗  INTRODUCTION ........................................................................... 184   I. A MODEL FOR THE RESOLUTION OF CONFLICTSBETWEEN HUMAN RIGHTS................................................. 187   II. THE LEGAL REASONING OF THE EUROPEAN COURTOF HUMAN RIGHTS .............................................................. 192   A.   T HE L EGAL R  EASONING OF THE C OURT UNDER  A RTICLE 10  OF THR  ECHR ....................................................................... 198   1. The Impact Criterion ....................................................... 202   a. Nature and Severity of the Penalty ............................ 202    b. Status of the Plaintiff ................................................. 205   c. Content, Tone, and Form of the Statement ................ 207   d. Statements of Fact versus Value Judgments.............. 214   2. The Core/Periphery Criterion .......................................... 217   3. The Additional Rights Criterion ...................................... 220   4. The General Interest Criterion ......................................... 221   ∗ I am indebted to Eva Brems and Alexandra Timmer for crucial commentson an earlier draft of this article and to the editorial staff at the  AmericanUniversity International Law Review for the constructive observations madeduring the editing process. All comments led to significant improvements in thequality of this article. Any mistakes and shortcomings remaining in the article areno one’s but my own. I am also immensely honored by and deeply appreciate theaward of honorable mention granted to an earlier version of this paper by theHonor Jury of the Human Rights Essay Award 2010, “The Right to Freedom of Expression and International Human Rights Law,” organized by the Academy onHuman Rights and Humanitarian Law. ∗∗ Stijn Smet (°1982) holds a Master in Law, a European Master’s Degree inHuman Rights and Democratization, and is currently enrolled as a Ph.D. candidateat the Human Rights Centre of Ghent University, working on his Ph.D.: “Conflicts between Human Rights in the Jurisprudence of the European Court of HumanRights.” He can be reached by e-mail at stijn_smet@msn.com.  184 A  M  .   U.    I   NT  ’   L  L.    R  EV  . [26:15. The Purpose Criterion ...................................................... 227   6. The Responsibility Criterion ........................................... 228   B.   T HE L EGAL R  EASONING OF THE C OURT UNDER  A RTICLE 8  OF THE ECHR ....................................................................... 232   CONCLUSION ............................................................................... 235   INTRODUCTION Based on fundamental values of freedom and equality, humanrights represent a constitutive element of any democratic society. Intheir srcinal conception, human rights are granted to everyindividual as—to use Ronald Dworkin’s metaphor—trumps over state interests. 1 They are designed to protect the individual fromunwarranted interferences in crucial aspects of her life. Only inspecific circumstances, when strict requirements of necessity and proportionality are met, can a state limit human rights to protect, for instance, public order or national security. 2 Different concernsmanifest when parties to a horizontal conflict 3 invoke a human rightto protect their interests. In such situations, where two human rightsconflict with one another, the principle of the indivisibility of human 1. See Ronald Dworkin,  Rights as Trumps , in T HEORIES OF R  IGHTS 152,   153-67 (Jeremy Waldron ed., 1984) (arguing that rights have priority over considerations of utility).2. See,   e.g. , Universal Declaration of Human Rights, G.A. Res. 217 (III) A,art. 29(2), U.N. Doc. A/RES/217(III) (Dec. 10, 1948) (“[E]veryone shall be subjectonly to such limitations as are determined by law solely for the purpose of securingdue recognition and respect for the rights and freedoms of others and of meetingthe just requirements of morality, public order and the general welfare in ademocratic society.”); Convention for the Protection of Human Rights andFundamental Freedoms, art. 9, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter European Convention on Human Rights]. (1) Everyone has the right to freedom of thought, conscience and religion; . . . (2)Freedom to manifest one’s religion or beliefs shall be subject only to such limitationsas are prescribed by law and are necessary in a democratic society in the interests of  public safety, for the protection of public order, health or morals, or for the protectionof the rights and freedoms of others.  Id.  3. In this context, a horizontal conflict—one between individuals—isdistinguished from a vertical conflict—one between an individual and the State.While the latter pits a human right against a State interest, the former involves theopposition of two human rights.  2010] H  UMAN   R  IGHTS IN  C  ONFLICT    185rights requires that both rights carry equal weight. 4 Neither right can be used as a trump over the other and alternative means must beemployed to resolve the conflict.When a conflict between human rights reaches a court, the matter necessarily involves a claim that the plaintiff’s rights have beenviolated. The defendant’s human rights will normally come beforethe court in an indirect manner—as part of her defense. The courtwill consequently be tempted to address the issue from the perspective of the directly invoked right. This is particularly true atthe European Court of Human Rights (“ECtHR”), since the counter- party to a claim at the Court is always the government of thecontracting State in question. This is also the case when the srcinalconflict in domestic proceedings was one between two individuals.At the international level, a formerly horizontal conflict will havetransformed, as it were, to a vertical one between the applicant andthe State. The other individual—the domestic defendant whosehuman rights are also at stake—disappears to the background. Theresulting approach, in which the Court addresses only the rightinvoked by the applicant and disregards to a lesser or greater extentthe other right(s) involved, will be referred to as “preferentialframing.” Preferential framing is problematic since it can lead to anunsatisfactory resolution of the conflict whereby an overemphasis onthe right invoked causes the Court to decide the conflict in favor of that right to the detriment of the other neglected right. This disparity points us toward two basic requirements for building a constructiveapproach to conflicts between human rights, namely the correctidentification of the conflict by the Court, followed by its resolutionthrough transparent and coherent reasoning that avoids consideringone party’s rights to the exclusion of the other’s.From this angle, this work will examine the conflict between 4. See World Conference on Human Rights, June 14-25, 1993, Vienna Declaration and Programme of Action , ¶ 5, U.N. Doc. A/CONF.157/23 (July 12,1993) (“All human rights are universal, indivisible, and interdependent andinterrelated.”); Eva Brems, Conflicting Human Rights: An Exploration in theContext of the Right to a Fair Trial int eh European Convention for the Protectionof Human Rights and Fundamental Freedoms , 27 H UM .   R  TS .   Q. 294, 303 (2005)(noting that some scholars have attempted to hierarchically list core rights, but thatno consensus exists on the subject, and therefore “it seems impossible to determine priority rules for conflicting human rights in the abstract”).
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